P M Hospital, Mavelikkara v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 AS.No. 733 of 2000() -------------------OS.277/1992 of SUB COURT, MAVELIKKARA .................... ## APPELLANTS/DEFENDANTS --------------------------------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM 2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION OFFICE MAVELIKKARA 3. THE ASST.EXE. ENGINEER, ELECTRICAL MAJOR SECTION MAVELIKKARA BY ADV. SRI.S.RAMESH BABU, SC. KSEB SRI.P.SANTHALINGAM, SC, KSEB RESPONDENT/PLAINTIFF ------------------------------------ P M HOSPITAL, MAVELIKKARA, REP BY DR.M P PHILIP, MANAGING PARTNER ADV. SRI.R.KRISHNA RAJ THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/11/11, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------AS No.733 of 2000 ------------------------------------Dated this the 23[rd] day of November 2011 ## Judgment The Kerala State Electricity Board, which suffered a decree at the hands of the Sub Court, Mavelikara in OS No.277/92 are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Shorn off unnecessary details, the plaintiff was served with Ext.A1 demand notice, asking him to pay a sum of Rs.1,10,396.90 being charges for the electricity consumed for the period 7/89 to 6/92. The allegation was that the Board claims that on 16.09.1992, a surprise inspection was conducted at the premises of the plaintiff and it was found that the meter was recording only 2/3[rd] of the consumption. The authorities, therefore, demanded arrears from the plaintiff on that basis and served Ext.A1 on the plaintiff. They removed the old meter and installed a AS 733/00 2 new one. The complaint of the plaintiff was that this was done without notice and information to him and he had no knowledge the meter installed at his premises was faulty nor was he accused of any theft of the electrical energy. Assailing Ext.A1 as arbitrary and unreasonable and against the principles of natural justice, the suit was laid. 3. The defendants resisted the suit. They pointed out that in the surprise inspection conducted on 16.09.1992, it was found that the meter was actually recording only 2/3[rd] of the consumption and that was due to a defect in the meter. They claimed that they had only issued an adjustment invoice with a covering letter and there is nothing wrong in issuing Ext.A1 notice. They also claimed that they had asked the plaintiff to pay the amount only for the actual energy consumed between July 1987 to June 1992. The meter was replaced on 27.05.1992 and that there is absolutely no illegality in in having issued Ext.A1 notice to the plaintiff. They, therefore, prayed for dismissal of the suit. AS 733/00 3 4. On the basis of the above pleadings, issues were raised by the trial court. Evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 and A1(a) from the side of the plaintiff. The defendants had DWs 1 and 2 examined and Exts.B1 to B5 (a) marked. 5. On an appreciation of the evidence in the case, the trial court found that the entire procedure adopted by the Bord is illegal and arbitrary and cannot be accepted. The court below found that there was no justification in issuing Ext.A1 invoice and also that it contains no details. It was also found that the defendants were unable to show any provision under which they were entitled to impose such a liability for the energy alleged to have been consumed by the plaintiff. Accordingly, the suit was decreed. The said judgment and decree are assailed in this appeal. 6. At the time of argument, one of the main contentions taken by the learned counsel for the appellant AS 733/00 4 is that the suit itself is not maintainable in view of the decision in **Punjab State Electricity Board v. Ashwani Kumar** (1997) 5 SCC 120) which was followed by this court in an unreported decision in RSA No.949/04. The learned counsel also referred to Ss.126 and 127 of the Electricity Act and pointed out that the plaintiff has got efficacious statutory remedies and that bars the jurisdiction of the civil court. 7. The learned counsel for the respondent pointed out that at no point of time, during the pendency of the suit before the lower court, such a contention was taken by the defendants. Under such circumstances, it comes with little grace for the defendants to contend for the position that the jurisdiction of the civil court is barred. 8. Going by the decision in **Punjab State Electricity Board v. Ashwani Kumar** (supra), it is difficult to accept the contention raised by the learned counsel for the respondent. In the said decision it was considered AS 733/00 5 whether suits of present nature will lie against the assessment made by the Electricity Board. After an elaborate consideration, it was held that the jurisdiction of the civil court is barred, since alternate efficacious remedies are provided under the Act. In the unreported decision in RSA No.949/04 dated 15.07.2011, this court had occasion to consider the very same issue and on the basis of the decision of the Apex Court, this court also held that the suit was not maintainable since statutory remedies were available to the aggrieved person. There is no reason as to why a different view should be taken in this case. Since the suit is not maintainable at all, the decree of the lower could has necessarily to be set aside. 9. However, it is only just and proper that the respondent in this appeal be given an opportunity to avail the statutory remedies for the redressal of his grievances and necessarily, he has to be given some time to avail of the statutory remedy. In the result, this appeal is allowed. The impugned judgment and decree are set aside subject AS 733/00 6 to the condition that the plaintiff in the suit will be entitled to seek statutory remedies within one month from today and till the statutory appeal is disposed of, it is directed that the recovery on the basis of Ext.A1 shall not be resorted to. The LCR produced before this court shall be returned forthwith. **P.Bhavadasan, Judge** sta AS 733/00 7